Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Nos. BCR2113 & WHCSS700055, John P. Vander Feer, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
A jury convicted defendant and appellant Thomas Clinton, Jr. of murder (Pen. Code, § 187), attempted murder (§§ 664 and 187), and attempted robbery (§§ 664 and 211). Defendant was sentenced to state prison, and the trial court imposed a restitution fine of $10,000. Defendant was later resentenced, and the trial court left the original restitution fine of $10,000. Defendant moved to have the fine reduced based on his inability to pay. The court denied the motion.
All further statutory references will be to the Penal Code, unless otherwise indicated.
Defendant’s sole contention on appeal is that the trial court erred in denying his motion for reduction of the restitution fine. The People correctly concede. We remand the matter for reconsideration of the amount of the restitution fine.
PROCEDURAL BACKGROUND
On June 15, 1993, defendant was convicted of murder (§ 187), attempted murder (§§ 664 and 187), and attempted robbery (§§ 664 and 211). The trial court sentenced defendant to state prison and imposed a restitution fine of $10,000. Defendant appealed to this court contending, among other things, that the trial court had erred in imposing a restitution fee of $10,000, since it found that he did not have the ability to pay the cost of appointed counsel or the costs of presentence investigation.
On November 15, 1995, this court issued an opinion in People v. Thomas Clinton, Jr., Court of Appeal case No. E013103, reducing the murder conviction to second degree murder and remanding the case for resentencing. We also directed the trial court to reconsider the amount of the restitution fine.
On August 16, 1996, the trial court held a hearing and resentenced defendant. The court reimposed the original restitution fee of $10,000 pursuant to section 1202.4 without considering defendant’s ability to pay.
In April 2007, defendant filed a motion to reduce the restitution fine. At a hearing on May 7, 2007, the trial court denied the motion. The court stated that based on section 1202.4, the maximum restitution fine was $10,000. The court noted that a restitution fine should be set at the discretion of the court and should be commensurate with the seriousness of the offense. The court questioned whether it had jurisdiction to reduce the fine and then found no basis for a reduction.
On July 5, 2007, defendant filed a motion to reduce the restitution fine in this court directly, and this court ordered the motion to be treated as a notice of appeal. On its own motion, this court took judicial notice of the contents of the court’s file in case No. E013103.
ANALYSIS
The Trial Court Improperly Denied Defendant’s Motion
Defendant contends this matter should be remanded to the trial court for reconsideration of his motion to reduce the restitution fine because the court improperly based its denial on section 1202.4, subdivision (c). The People correctly concede.
The trial court based its decision on defendant’s motion on section 1202.4 instead of Government Code section 13967, subdivision (a), which was in effect when defendant was originally sentenced in 1993. At the time defendant was sentenced, “Government Code section 13967, subdivision (a) provided in part that ‘. . . if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than two hundred dollars ($200), subject to the defendant's ability to pay, and not more than ten thousand dollars ($10,000).’” (People v. Saelee (1995) 35 Cal.App.4th 27, 30, italics in original.) The court failed to consider defendant’s ability to pay in reimposing the $10,000 restitution fine. Accordingly, we will remand for resentencing with respect to the amount of the restitution fine.
DISPOSITION
The restitution fine is reversed and the matter is remanded for reconsideration of the amount of that fine. The trial court is directed to consider defendant’s ability to pay in determining the amount of the restitution fine. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P.J., GAUT J.